Squire Patton Boggs (US) LLP

2550 M Street, NW
Washington, D.C. 20037

O +1 202 457 6000

F +1 202 457 6315
squirepattonboggs.com
Memorandum

From: Squire Patton Boggs (US) LLP

Date: July 19, 2019

Subject: Government Action on Per- and Polyfluoroalkyl Substances (PFAS)

Per- and polyfluoroalkyl substances (PFAS) are a group of man-made chemicals that have been manufactured and
used in a variety of industries since the 1940s. There are nearly 5,000 types of PFAS, with perfluorooctanoic acid
(PFOA) and perfluorooctane sulfonate (PFOS) being the most extensively produced and studied of these chemicals.
While no longer produced in the United States, PFOA and PFOS are termed “forever chemicals,” as they are very
persistent in the environment and the human body and do not break down naturally. PFOA and PFOS are still
produced globally and are often contained in products imported by the United States. The Department of Defense
(DoD) identified 401 military sites that could be contaminated with PFAS in 2017, and the Environmental Working
Group and Northeastern University mapped at least 712 documented cases of PFAS contamination across 49 states
as of July 2019.

According to the Environmental Protection Agency (EPA), PFAS chemicals can be found in everyday products and
locations, including:

 food packaged in PFAS-containing materials or grown in PFAS-contaminated soil or water;

 commercial household products, including stain- and water-repellent fabrics, nonstick products (e.g., Teflon),
polishes, waxes, paints, cleaning products, and fire-fighting;
 the workplace, including production facilities or industries (e.g., chrome plating, electronics manufacturing or
oil recovery) that use PFAS;
 drinking water, typically localized and associated with a specific facility (e.g., manufacturer, landfill,
wastewater treatment plant, firefighter training facility); and
 living organisms, including fish, animals and humans, where PFAS have the ability to build up and persist
over time.

There has been recent concern over evidence that exposure to PFAS can lead to adverse human health effects. As
mentioned above, certain PFAS, particularly PFOA and PFOS, can accumulate and stay in the human body for long
periods of time. Studies indicate that PFOA and PFOS can cause reproductive and developmental, liver and kidney,
and immunological effects in laboratory animals. Additionally, both chemicals have caused tumors in animals. The
most consistent findings include increased cholesterol levels among exposed populations, with more limited findings
related to low infant birth weights, effects on the immune system, cancer (for PFOA), and thyroid hormone disruption
(for PFOS).

This memorandum provides background on (I) EPA and Food and Drug Administration (FDA) actions, (II)
congressional actions, and (III) stakeholder comments regarding PFAS. It also provides a forecast for future
government actions.

47 Offices in 20 Countries

Squire Patton Boggs (US) LLP is part of the international legal practice Squire Patton Boggs, which operates worldwide through a number of separate
legal entities.

Please visit squirepattonboggs.com for more information.

I. Environmental Protection Agency and Food and Drug Administration Actions

In February, EPA released a PFAS Action Plan, which outlined steps the agency is taking to address PFAS
contamination. The plan indicated that the agency is moving forward with the Maximum Contaminant Level (MCL)
process for PFOA and PFOS, classifying PFOA and PFOS as hazardous substances under the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and considering the addition of
PFAS chemicals to the Toxics Release Inventory (TRI). EPA received bipartisan criticism over failing to set forcible
Safe Drinking Water Act standards for PFAS.

Recently, FDA released a study that showed levels of PFAS in some U.S. foods, specifically tilapia, chicken, turkey,
beef, cod, salmon, shrimp, lamb, catfish, hotdogs, leafy greens, and even chocolate cake. PFAS contamination has
been linked to groundwater, drinking water, and feed at farms and ranches, particularly those near military bases.
Despite these findings, FDA indicates that PFAS was not detected in the “vast majority” of the foods tested and it
“does not have any indication that these substances are a human health concern.”

II. Congressional Actions

Lack of action by the EPA and growing concern over potential adverse health effects of these chemicals has pressed
Congress to introduce legislation concerning the use and contamination of PFAS. Lawmakers have introduced
several pieces of legislation and amendments in a bipartisan fashion. Republicans — who are in the majority in the
Senate — have overwhelmingly acknowledged the need to prevent and address the contamination of PFOA and
PFOS, but have expressed great opposition to grouping all 5,000 PFAS chemicals into a single policy action as their
health and environmental effects are largely currently unknown. Additional partisan controversy has surrounded
whether to classify PFAS as hazardous substances under CERCLA, which is mostly favored by Democrats — who
are in the majority in the House of Representatives.

The Senate Committee on Environment and Public Works (EPW) held hearings on PFAS in March and April 2019
and the House Committee on Energy and Commerce held hearings on the issue in September 2018 and May 2019.
During this congressional session, many members have introduced standalone bills that would address and mitigate
PFAS contamination. Most recently, varying PFAS-related amendments have been adopted into both chambers’ FY
2020 National Defense Authorization Act (NDAA), but the differing language will have to be negotiated in conference.

A. Senate

In June, EPW Chairman John Barrasso (R-WY), Ranking Member Tom Carper (D-DE), and Senator Shelley Moore
Capito (R-WV) introduced the PFAS Release Disclosure Act (S. 1507). The bill was considered by the committee and
subsequently attached as an amendment to the Senate’s NDAA (S. 1790), which was passed by the chamber on
June 27 by a vote of 86-8. The Senate’s NDAA package contains PFAS-related measures that:

 Require EPA to set an enforceable drinking water limit for PFOA and PFOS within two years and take
additional future action as more is learned by the agency about the remaining 5,000 other chemicals in the
class;
 Require reporting of PFAS releases as part of the TRI reporting program;
 Use Toxic Substance Control Act (TSCA) authorities, collect information about all PFAS manufactured in the
United States since 2006 and complete pending TSCA rulemakings regarding long-chain PFAS;
 End most uses of PFAS by the military in firefighting foam;
 Require the Secretary of Defense to finalize a cooperative agreement to address testing, monitoring,
removal, and remedial actions relating to the contamination of drinking, surface, or ground water from PFAS
originating from activities of the DoD if requested by a governor;
 Require DoD to provide annual blood testing to determine and document potential exposure to PFAS for
each DoD firefighter;
 Direct the Director of the U.S. Geological Survey (USGS) to carry out sampling at sources of drinking water
near locations with known or suspected PFAS compounds with an authorization of $5 million for FY 2020
and $10 million for each of FY 2021-2024; and
 Provide cooperation and assistance to states, local governments, and public water systems, including
authorizing $100 million for each of FY 2020-2024 to the Drinking Water State Revolving Funds, to address
PFAS contamination.

The Senate NDAA package does not include language to classify PFAS as hazardous substances under CERCLA.

2
 B. House of Representatives

On July 12, the House of Representatives passed its respective NDAA (H.R. 250), which also contains PFAS-related
measures, by a vote of 220-197. Some of the PFAS- related measures are more partisan in nature compared to the
Senate’s version, and these provisions reflect the Democratic majority in the chamber. The House of
Representatives’ NDAA package includes PFAS-related measures that:

 Require EPA to revise the list of toxic pollutants under the Federal Water Pollution Control Act to include
PFAS and publish effluent and pretreatment standards;
 Require the Secretary of Defense to finalize a cooperative agreement to address testing, monitoring,
removal, and remedial actions relating to the contamination of drinking, surface, or ground water from PFAS
originating from activities of DoD if requested by a governor;
 Require the EPA Administrator to designate all PFAS as hazardous substances under CERCLA;
 Authorize an additional $5 million for the nationwide Centers for Disease Control and Prevention Agency for
Toxic Substances and Disease Registry PFAS health study;
 Direct the Secretary of the Navy to publish a military specification for a fluorine-free firefighting agent by
2023 to ensure it can be used by 2025 and prohibits usage of fluorine agents after September 30th, 2025;
 Require the Government Accountability Office to conduct a review of DoD’s response to PFAS
contamination in and around military bases;
 Require DoD to ensure that all incineration of materials containing PFAS ensures the chemical is not emitted
into the air and all incineration is conducted in accordance with the requirements of the Clean Air Act;
 Create an online clearinghouse of information for members of the Armed Services to find information about
exposure to PFAS and treatment for associated health conditions;
 Require DoD to implement mandatory training for all medical providers working under DoD on the potential
health effects of burn pits and its early detection, as well as other airborne hazards, such as PFAS, mold, or
depleted uranium;
 Require the Secretary of Defense to enter into agreements with municipalities or municipal drinking water
utilities located adjacent to military installations to share monitoring data relating to PFAS; and
 Authorize $5 million for the first year of a five-year study by USGS to survey for PFAS contamination across
the country.

Another bill of note introduced in the House is the Protecting Drinking Water from PFAS Act of 2019 (H.R. 2377),
which would require EPA to set a maximum contaminant level for all PFAS in drinking water. The bill was referred to
the House Committee on Energy and Commerce and currently has 30 cosponsors (29 Democratic and one
Republican), but the Committee has yet to consider the legislation. Even if passed, the bill is likely to fail in the
Republican-controlled Senate.

III. Stakeholder Comments

With the absence of a federal forcible Safe Drinking Water Act standard for PFAS, many states have adopted PFAS-
related regulations and policies of their own, particularly concerning PFOA and PFOS. Local lawmakers have also
taken steps to address PFAS contamination; fourteen local leaders from the National League of Cities drafted a
solution outlining local government concerns over the chemicals.

Many companies and associations have expressed opposition to designating PFAS as hazardous substances under
CERCLA. If listed as such, present owners and operators, transporters, and arrangers would be liable for the cost of
cleanup of PFAS contaminations. The American Association of Airport Executives expressed concern about
designating PFAS a hazardous substance under CERCLA, as airports are currently required by federal law to use
PFAS-containing firefighting foam and switching to alternative firefighting foams could lead to costs of responding to
or damages resulting from the use of PFAS.

The U.S. Chamber of Commerce has also spoken out against classifying the chemicals as hazardous under
CERCLA, saying it would have significant unintended consequences that could lead to the reopening of an
innumerable amount of remediated and create unnecessary economic burdens on stakeholders, including small
businesses. It also requested that any TRI reporting requirements mandated in legislation target PFAS that are of the
highest priority based on actual risk, suggesting all 5,000 PFAS chemicals should be considered individually.

Meanwhile, environmental groups, such as the Environmental Council of the States and the Association of Clean
Water Administrators, are calling for consideration for greater regulation over all 5,000 PFAS, as well as banning the
production and import of products containing PFAS.

3
IV. Forecast

A final NDAA is a likely vehicle for PFAS-related language; however, the two chambers must conference the bills and
agree on what measures concerning the chemicals should be included. Many observers currently believe the
Senate’s bipartisan measures are more likely to be included in the final bill, while language classifying PFAS as
hazardous substances under CERCLA is expected to be left out for now.

Of note, on July 9, the White House issued a Statement of Administration Policy threatening to veto the House NDAA
over several provisions, including sections relating to PFAS. The Administration took issue with prohibiting DoD from
using fluorinated firefighting foam before a viable equivalent replacement has been identified. It also disagreed with
providing authority to DoD to treat water sources or provide replacement water for agricultural purposes where the
water source is contaminated with PFOA and PFOS from military activities.

While the NDAA does take some federal action on PFAS, Congress will continue examining legislation concerning
the chemical. Dozens of pieces of PFAS-related legislation have been introduced, and lawmakers continue to discuss
ways to address PFAS contamination in a mostly bipartisan manner.

*****